Merrill and Burt (No 2) - [2017] FamCA 267

FAMILY COURT OF AUSTRALIA

MERRILL & BURT (NO 2)

[2017] FamCA 267

FAMILY LAW – PROPERTY – SPOUSAL MAINTENACE – Interim – Whether husband has need for spousal maintenance and wife has capacity to maintain husband – Where consideration given to wife’s limited income – Where Court held wife has capacity to maintain husband arising from capital – Application allowed.

FAMILY LAW – EVIDENCE – PROCEDURE –Where husband seeks spousal maintenance pursuant to pursuant to s 90SG of the Family Law Act 1975 (Cth) – Where wife opposes application – Where Court considers the application is not ‘urgent’ – Where it would be more appropriate to make an order for interim spousal maintenance pursuant to pursuant to s 90SF of the Act.

Family Law Act 1975 (Cth) ss 90SB, 90SD, 90SE, 90SF, 90SG, 90SM

Edgar & Strofield [2016] FamCAFC 93
Hall & Hall (2016) 332 ALR 1
Maroney & Maroney [2009] FamCAFC 45
M & M (2006) FLC 93-283
Stein & Stein (2000) FLC 93-004
The Marriage of Williamson (1978) FLC 90-505

APPLICANT:

Ms Merrill

RESPONDENT:

Mr Burt

FILE NUMBER:

MLC

9912

2013

DATE DELIVERED:

1 May 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC with Ms Fisken

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Mr Jones QC with Mr Hall

SOLICITOR FOR THE RESPONDENT:

Efron & Associates

Orders

That the applicant wife do pay interim spousal maintenance to the respondent husband in the following manner:-
(a)Seventeen (17) weekly payments of ONE THOUSAND AND TWENTY FOUR DOLLARS ($1,024) payable on the first Monday following the delivery of Judgment and weekly thereafter up to a maximum sum of SEVENTEEN THOUSAND FOUR HUNDRED AND EIGHT DOLLARS ($17,408).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrill & Burt (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 9912 of 2013

Ms Merrill
Applicant

And

Mr Burt
Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The Further Amended Initiating Application filed on 19 February 2016 by Ms Merrill (“the applicant”) and the Amended Response filed 2 March 2017 by Mr Burt (“the respondent”) came for final hearing in the Melbourne Registry of the Family Court of Australia on 22 August 2016.
On 31 August 2016 the trial was adjourned part-heard for mention to 17 October 2016. By order made 20 February 2017, the part-heard trial was listed for hearing on 3 April 2017.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Merrill and Burt (No 2)

Details

AGLC: Merrill and Burt (No 2) [2017] FamCA 267
Case: [2017] FamCA 267
Decision Date: 1 May 2017

CaseChat Overview and Summary

In *Merrill and Burt (No 2)*, Berman J of the Family Court of Australia considered an application by the respondent husband for interim spousal maintenance against the applicant wife. The wife opposed the application.

The central legal issues before the Court were whether the husband had a need for spousal maintenance and, conversely, whether the wife had the capacity to provide such maintenance. The Court also considered the appropriate legislative basis for an interim order, noting that while the application was framed under s 90SG of the *Family Law Act 1975* (Cth), it would be more appropriate to make an order for interim spousal maintenance pursuant to s 90SF of the Act, as the matter was not considered urgent.

Berman J found that the wife had the capacity to maintain the husband, notwithstanding her limited income, by drawing upon her capital. The Court reasoned that the wife's financial position allowed for her to meet the husband's needs for interim maintenance.

Consequently, the Court ordered the wife to pay interim spousal maintenance to the husband in the sum of $1,024 per week for seventeen weeks, totalling $17,408.

Orders

Orders of the court

That the applicant wife do pay interim spousal maintenance to the respondent husband in the following manner:-

(a) Seventeen (17) weekly payments of ONE THOUSAND AND TWENTY FOUR DOLLARS ($1,024) payable on the first Monday following the delivery of Judgment and weekly thereafter up to a maximum sum of SEVENTEEN THOUSAND FOUR HUNDRED AND EIGHT DOLLARS ($17,408).

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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